Dickens -Right to Conscience.Pdf

TSpace Research Repository tspace.library.utoronto.ca The Right to Conscience Abortion Law in Transnational Perspective: Cases and Controversies Bernard Dickens, R.J. Cook & J.N. Erdman Version Publisher’s Version Citation Bernard Dickens, "The Right to Conscience” in Rebecca J. Cook, (published version) Joanna N. Erdman & Bernard M. Dickens eds, Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press, 2014) 210-238. Publisher’s Statement All rights reserved. Except for brief quotations used for purposes of scholarly citation, none of this work may be reproduced in any form by any means without written permission from the publisher. For information address the University of Pennsylvania Press, 3905 Spruce Street, Philadelphia, Pennsylvania 19104-4112. How to cite TSpace items Always cite the published version, so the author(s) will receive recognition through services that track citation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpace because you cannot access the published version, then cite the TSpace version in addition to the published version using the permanent URI (handle) found on the record page. This article was made openly accessible by U of T Faculty. Please tell us how this access benefits you. Your story matters. Chapter 10 The Right to Conscience Bernard M. Dickens The aim of this chapter is to release “conscience” from capture by those who object to participation in induced abortion. It argues that, while opponents of induced abortion are properly entitled to invoke conscientious objections to participation, others are equally entitled conscientiously to participate in such lawful procedures, to advise patients about the option, and to refer patients to where appropriate services are available. This includes taking such actions in institutions that, for religious or other reasons, oppose such procedures on principle. The human right to act lawfully according to one’s indi- vidual conscience is not a monopoly of abortion opponents. As a legally protected human right, however, the right to conscience may be considered an entitlement primarily of human individuals, and available to corporate or other institutions on only a limited basis. Individuals may accordingly invoke conscientious reasons to participate, or not to participate, in abortion procedures, and to offer advice and referral without suffering sanctions or discrim- ination on grounds of their religious or philosophical convictions. The origins of conscientious objection in health care precede the legaliza- tion of abortion. In England, for instance, legislation of mandatory vaccination of children against smallpox in 1867 triggered violent objections to vaccination.1 Among medical practitioners, historical conservative attitudes rooted in different religions, religious denominations, and laws influenced practitioners conscientiously to object to advise and assist artificial contra- ception, contraceptive sterilization, artificial insemination, and abortion.2 Copyright © 2014. University of Pennsylvania Press. All rights reserved. of Pennsylvania Press. © 2014. University Copyright The transition to legality of these procedures was traced in 1966 by two Abortion Law in Transnational Perspective : Cases and Controversies, edited by Rebecca J. Cook, et al., University of Pennsylvania Press, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/utoronto/detail.action?docID=3442404. Created from utoronto on 2018-05-08 11:16:05. Cook_AbortionLaw_TX.indd 210 5/13/14 7:55 AM The Right to Conscience 211 gynecologists regarding artificial insemination when they observed, “Any change in custom or practice in this emotionally charged area has always elic- ited a response from established custom and law of horrified negation at first; then negation without horror; then slow and gradual curiosity, study, evaluation, and finally a very slow but steady acceptance.”3 It was growing legaliza- tion of abortion, however, from the late 1960s in Europe and beyond, that made this procedure the prime center of health service providers’ claims to object to participation in lawful medical care on grounds of conscience. An important factor easing enactment of the U.K. Abortion Act, 1967,4 for instance, was inclusion of section 4(1), which provides that “no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection.” Section 4(2) provides the exception, however, of: “any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.” The section is consistent with the Universal Declaration of Human Rights, of 1948, which provides in Article 18 that: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom . to mani- fest his religion or belief in teaching, practice, worship and observance.” When legal effect was given to this right, however, in the International Cov- enant on Civil and Political Rights, it was made clear that the right is not ab- solute. Article 18(1) repeats that everyone “shall have the right to freedom of thought, conscience and religion,” but 18(3) provides that: “Freedom to man- ifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” The protection under human rights of “conscience and religion” shows that conscience is separate from religion. Religious convictions may well shape individuals’ conscience, but religion has no monopoly on conscience and is indeed subject to scrutiny and evaluation on grounds of conscience. Conscience may be shaped by social, philosophical, political, professional, and other convictions apart from those founded on religious faith. Religious institutions and hierarchies that, for instance, do not include women, and that expressly exclude women from positions of doctrinal authority, may be considered conscientiously flawed, and to lack relevance in their pronounce- ments, particularly on a matter such as abortion, in which women’s health Copyright © 2014. University of Pennsylvania Press. All rights reserved. of Pennsylvania Press. © 2014. University Copyright and interests are centrally involved. Abortion Law in Transnational Perspective : Cases and Controversies, edited by Rebecca J. Cook, et al., University of Pennsylvania Press, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/utoronto/detail.action?docID=3442404. Created from utoronto on 2018-05-08 11:16:05. Cook_AbortionLaw_TX.indd 211 22734 5/13/14 7:55 AM 212 Framing and Claiming Rights Religious convictions may inspire individuals to enter the health care professions, for instance as doctors or nurses. This conforms to a long, honour- able tradition of religious commitment to care for the sick and for disabled individuals. When health care practitioners would place their personal conscience above serving their dependent patients’ health needs, however, they risk violation of their duties of conscientious professionalism, with legal implications, which this chapter addresses, and ethical implications.5 The four historic reputable professions, namely religious ministry, the profession of arms, medicine, and the law, are founded on a calling to self- sacrifice. In times of plague, for instance, ministers of religions tended to the sick and dying at the risk of contracting infections and sharing the fate of those they comforted. The status of mercenary soldiers is now discredited, but volunteers and conscripts who serve their nations have paid, and still pay, with their health and very lives. Doctors who treated infectious patients have faced risks of contracting their infection in past and present times. For instance, Dr. Carlo Urbani, who in 2003 discovered and named the severe acute respiratory syndrome (SARS), died of contracting that viral infection. Law- yers may be obliged to defend those accused, and guilty, of atrocious crimes, and to advance the purposes of clients, including governments, whose moti- vations they deplore, with professional detachment and disregard for their own interests. Against this background of self- sacrifice, health care profes- sionals who will serve their own religious or other interests by sacrificing the interests of their dependent patients, by reliance on the claim of conscientious objection, are in a conflict of interest, with legal and ethical account- ability, and risk committing a travesty of professionalism. The challenge in law is to address how health care providers conscientiously opposed to abortion and comparable procedures that serve their patients’ wishes and interests should conduct themselves. A related challenge is how health care institutions founded on religious traditions opposed to such procedures should accommodate health care providers who are conscientiously committed to delivering such services when, in their clinical judg- ment, the providers consider the procedures to best serve their patients’ wishes and health interests. The latter challenge bears attention, since in the abortion context the focus in the literature, legislation, and jurisprudence has been on conscientious objection, and accommodation of objectors’ human rights

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